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High Court Of Calcutta
Pratibha Bonnerjea
MINING AND ALLIED MACHINERY CORPORATION LTD. - Appellant
Versus
HOPE (INDIA) LTD. - Respondent
Award Case 31 Of 1981
Decided On : 02/03/1983
ARBITRATION - SECTION 31(4) - APPOINTMENT OF ARBITRATOR - JURISDICTION - SUPREME COURT HAS EXCLUSIVE JURISDICTION TO ENTERTAIN AN AWARD WHERE THE ARBITRATOR IS APPOINTED BY IT.
Fact of the Case:
M/s. Hope (India) Ltd. entered into a contract for the supply of goods with the respondent. Disputes arose, and an arbitration clause in the contract was disputed. The validity of the arbitration agreement was determined by the Calcutta High Court, and the Supreme Court dismissed a special leave petition filed by M/s. Hope (India) Ltd. The parties agreed to refer the dispute to a sole arbitrator, Mr. Justice Sudhamoy Basu, a retired Judge of the Calcutta High Court, as per the Supreme Court's suggestion.
Finding of the Court:
The court held that the Supreme Court appointed the arbitrator and had exclusive jurisdiction under Section 31(4) of the Arbitration Act. The court found that the parties proceeded on the basis that the arbitrator was appointed by the Supreme Court, and it was too late to argue otherwise.
Issues: 1. Whether the Supreme Court or the Calcutta High Court has jurisdiction to entertain the award. 2. Whether the arbitrator was appointed by the Supreme Court or by the parties.
Ratio Decidendi: 1. Section 31(4) of the Arbitration Act confers exclusive jurisdiction on the Supreme Court to entertain an award where the arbitrator is appointed by it. 2. The Supreme Court appointed the arbitrator in this case, as evidenced by the order passed by the court on the parties' submissions. The parties and the arbitrator proceeded on the basis that the arbitrator was appointed by the Supreme Court.
Final Decision: The court directed the award to be taken off the record and returned to the parties for filing in the proper court. No order as to costs was made.
( 1 ) THIS is an application by M/s. Hope (Indial Ltd. under Sections 30 and 33 of the Arbitration Act for setting aside the award dated 30-8-1980. M/s. Hope (India) Ltd. entered into a contract for supply of goods to the respondent and indeed supplied certain quantity of the said goods. Thereafter disputes and differences arose relating to the said transaction. The contract between the parties contained an arbitration clause but the validity of the same was disputed. In that view of the matter, an application Under Section 33 of the Arbitration Act was taken out for determination of the existence and the validity of the said arbitration agreement being Matter No. 364 of 1977. The said application was heard by Mr. Sabyasachi Mukharji J. , and it was held that there was a valid and subsisting arbitral ion agreement between the parties. Against that Order, M/s. Hope (India) Ltd. moved the Supreme Court and look out a special leave petition being S. L. Petition (Civil) No. 115 of 1979. But the said S. L. P. was not pressed. What transpired before the Hon'ble Supreme Court on that date was recorded in the order dated 3-5-79 which is set out in full below :--Hon'ble Mr. Justice P. M. Singhal. Hon'ble Mr. Justice A. D. Koshal. For the petitioner : Mr. S. S. Roy, Sr. Adv. , Mr. H. K. Puri, Adv. For the respondents Mr. Soli J. Sarabji, Addl. Solicitor Gen. of India with Mr. A. K. Ganguli and Mr. K. Jaya-ram and Mr. K. Ramkumar, Advs. Upon hearing counsel, the court made the following order :--"heard the learned counsel. The special leave petition is not pressed and is, therefore dismissed. Learned counsel are however in agreement that the dispute and difference between the parties be referred to the sole arbitration or Mr. Justice Sudhamoy Basu or Mr. Justice Masud who are the retired Judges of the Calcutta High Court. The learned Additional Solicitor General wants to place on record that this has been agreed to in response to a suggestion which fell from the court and that this will not be precedent for the future. It is ordered accordingly. Sd/- A. Appa Rao assistant Registrar. "
( 2 ) WHAT followed thereafter clearly appears from the records filed by the arbitrator in this proceeding. I find from this record that one S. L. Ganguli, Sec retary of the respcndent Mining And Allied Machinery Corporation Ltd. wrote a letter dated 16-5-1979 to the retired Judge Mr. Justice Sudhamoy Basu in following terms : to, mr. Justice Sudhamoy Basu (Retired) 53, Southern Avenue Calcutta-29. Dear Sir, sub. : Dispute between M/s. M. A. M. C. Ltd. and M/s. Hope (India) Ltd. arising out of Purchase Order No. p/6209982/vpc dated 24-6-75.
( 3 ) IN pursuance to the direction of the Hon'ble Supreme Court of India daled 3-5-1979 in Special Leave to appeal (Civil) No. 115 of 1979 (copy enclosed) we hereby nominate you to act as sole Arbitrator in the above mention-ed dispute.
( 4 ) KINDLY signify your acceptance to act as sole Arbitrator in the above mentioned dispute. M/s. Hope (India) Ltd. is being informed separately Yours faithfully, sd/- (S. L. Ganguli) Secretary. Copy to : m/s. Hope (India) Ltd. Pench Steel Division kauak Building 41 Chowringhee Road calcutta 700071.
( 5 ) IN response to that letter Mr. Justice Sudhamoy Basu wrote both the parties on 21-5-79 as follows:--"i have received a letter dated 16-5-1979 from M/s. Mining and Allied Machinery Corporation Ltd. by which they nominated me in pursuance to the Supreme Court Order to act as the sole Arbitrator in the above matter. From the copy of the order of the Supreme Court, dated, 3rd May, 1979 it appears that I have been appointed to act as the sole Arbitrator by the Supreme Court on the submissions of both the parties, On that understanding I consent to act in the matter. "
( 6 ) HE entered upon the reference and made and published his award on 30-8-80. The said award is in favour of the respondent and has been filed in this court. The present application for setting a
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